Greenwood, R v Andrew Philip [2004] EWCA Crim 1388

Case No 200304007 C1

[2004] EWCA Crim 1388

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM Liverpool Crown Court

Mr Justice Holland

No: 200304007X1

Venue Royal Courts of Justice, Strand, London

Date Friday 28 th May 2004

WC2A 2LL

Before

LORD JUSTICE WALLER

MR JUSTICE DAVIS

MR JUSTICE DAVID CLARKE

Between

RRespondent

Andrew Philip GreenwoodAppellant

(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

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Mr Paul Reid QC and Mr Richard Holland (instructed by Mr Paul Cummings, CPS) for Respondent

Mr Andrew Edis QC and Mr Stuart Denney (instructed by Peter Roberts of O’Donnells) for Appellant

Judgment

Introduction

[1]In the early hours of Sunday 16th June 1996 Janet Murgatroyd, a young woman aged twenty, was attacked and killed near Penwortham New Bridge, Preston, whilst walking home from a night out. She died from a combination of head injuries and eventual drowning in the waters of the River Ribble. Her naked body was later found floating in the river at about midday. A police investigation was undertaken but nobody was charged with her murder. Over three years later, on the 2nd August 1999, the appellant, then aged twenty-five and a stranger to the victim, approached two police officers on duty and told them that he had murdered the young woman three years previously, following a chance encounter with her. He was arrested and in five interviews throughout that day made repeated and detailed admissions that he was responsible.

[2]He was first tried before Leveson J and a jury at the Crown Court in Liverpool in October 2002. The jury were unable to reach a verdict and were discharged from doing so on 24th October 2002. He was retried at the Crown Court in Liverpool in June 2003 before Holland J and a jury. At the retrial he was convicted of manslaughter by a majority of ten to one. He was later, on 21st July 2003, sentenced by Holland J to eight years imprisonment.

[3]He appeals against conviction by leave of the single judge. The main ground of appeal relates to a ruling by Holland J that certain admissions and other evidence about a man, Parkinson, a boyfriend of the victim, which had formed part of the evidence at the first trial and which the Crown were prepared to allow to go before the jury at the second trial, were not admissible evidence relevant to the issue whether the appellant’s confessions were true and genuine, and his consequential ruling that no evidence relating to Parkinson should be placed before the jury. The further and very much secondary grounds of appeal were(1) that the conviction for manslaughter was inexplicable other than as a compromise if the appellant’s confession was true, in that that confession was only consistent with the appellant being a murderer;

(2) that the jury was placed under pressure because of the holiday commitments of one of their number, counsel not having been allowed to see the content of certain jury notes; and

(3) that in all the circumstances there was at least a lurking doubt as to the appellant’s guilt.

[4]So far as jury pressure was concerned we were able to reveal certain aspects of the jury notes, which demonstrated that there was no substance in the pressure of time point. From the same notes we were also able to reveal that there was no substance in the suggestion that the manslaughter verdict was a compromise.

[5]The Crown sought to argue first that Holland J’s ruling in relation to the evidence relating to Parkinson was correct, but in the alternative, that even if it was not correct, the evidence was such that any admission of the evidence relating to Parkinson would have made no difference to the jury’s verdict. This is to be contrasted with the defence position, that there was in any event a lurking doubt. We can say at the outset that the key issue on the appeal relates to the judge’s ruling in relation to the evidence on Parkinson. That evidence was placed before the jury at the first trial, where the jury disagreed. It was not before the jury which convicted at the retrial. It is hardly conceivable that this court could be sure that the verdict was safe if that evidence should have been before the second jury. Equally if that evidence should not have been before the second jury, there were certainly powerful points that the Crown could make as to why the jury were entitled to reach the verdict they did. It is thus with the key issue in mind that we turn to the facts.

The Facts

[6]Apart from his confessions there was no evidence which connected the appellant with the killing of the victim. The Crown’s case depended entirely on the confessions that the appellant had made. The first confession that the appellant had made was on the 2nd August 1999, when he approached PC Halliwell and WPC Cunningham as they were on duty in the early hours of the morning. Those officers gave evidence that, during their conversation, the appellant said that he had murdered Janet three years earlier. He said, according to them, that he had punched and kicked her on the riverbank. He had done it because he had talked to her and she had laughed at him. He then returned to his flat and was sick. He had never mentioned it to anybody since and it had been preying on his mind for three years. When they asked if he could narrow the date down he said it was the date of the football match between England and Scotland. A football match between England and Scotland had indeed taken place on Saturday 15th June 1996. The officers arrested him for murder. The appellant was under the influence of drink when making that confession.

[7]Dr Lowe examined him at the police station and the appellant was in a very emotional state, but was considered fit to be interviewed.

[8]The second confession was during five police interviews conducted by DCI Kennedy and DC Benson on 2nd August 1999. We will return to some of the details of these interviews below. His third confession was upon the charge for murder when he said “I wish to say sorry for my actions, which is not like me. I’ll carry on repenting like I’ve done for the past three years.” Fourthly, following his remand into custody, the appellant made further confessions to members of his family, to his cell mates and to a priest. It was during his period in custody that he reflected on the admissions he had been making; and letters written from the cells (which we have not seen), apparently showed a gradual change of heart.

The details of the interviews

[9]So far as the details of the interviews were concerned, the key question for the jury was obviously whether they were true. That question had to be answered in the context of there having been first a Crimewatch television broadcast shortly after the murder, and in the context of extensive newspaper coverage, both in 1996 shortly after the murder and thereafter. There was particular coverage in June 1999 shortly before the appellant confessed. The case made on behalf of the appellant at the trial was that there were significant details provided by the appellant in interview, which were consistent with the reporting in the newspaper or the Crimewatch programme, but which could not, in fact, have happened on the night when Janet was attacked. Conversely it was the Crown’s case that there were details provided by the appellant in interview which were inconsistent with the newspaper reports, but which were much more consistent with what the experts said was likely to have happened on the night Janet was killed. The Crown’s case in relation to other details, which the defence could say must have come from the newspaper reporting, and which could not be accurate, was because the appellant could not remember all the traumatic events of the night in question, and / or was affected by the drink which he had taken, he might well have supplemented his memory from the accounts in the newspapers.

[10]A key point relied on by the defence for example was that in the police interview the appellant said that he met the victim after he crossed Penwortham Old Bridge and was on Broadgate. Penwortham Old Bridge is a footbridge about one third of a mile from Penwortham New Bridge. He told how he had chased Janet from there along Broadgate and over Penwortham New Bridge to the scene where he killed her. It is quite clear that this could not have happened. Many witnesses saw Janet walk down Fishergate Hill, straight onto Penwortham New Bridge. She was clearly not accosted by her killer until she had actually walked onto the New Bridge. The defence made the point that a plan published in the Lancashire Evening Post in June 1996, and then again – and significantly - in June 1999, had shown that a couple had been seen arguing violently at the Old Bridge. The 1999 version suggested that this was where Janet had met her killer.

[11]There were however other details in the interview which the Crown suggested were consistent only with the confession being a true confession. The most significant points made by the Crown related to the following:-a. The appellant in interview explained in graphic detail how he had attacked Janet, stripped her naked and thrown her into the river. He described graphically how he watched her body float downstream, saw it get caught for a while, and how it went off again. This was quite inconsistent with the initial theory which the police had as to what had happened, which theory had been published in the newspapers. The evidence of the pathologist, Dr Tapp, was that Janet was not dead before she was put into the river. His evidence was that he had found signs of hypostatic pneumonia, which could not develop unless someone was unconscious, alive, and lying recumbent for at least four hours. His opinion had been that if Janet had been put straight into the river unconscious, she would have been dead after four to five minutes, not allowing that condition to develop. Thus the police’s initial theory was that Janet must have been rendered unconscious and lain on the riverbank for a period of four hours developing hypostatic pneumonia; and that, the river being tidal, when the tide came in it had swept her body off the bank and taken the body upstream to the position where it was ultimately found. The detail provided by the appellant produced a further and, as the Crown suggested, a more likely theory. If the appellant’s version was right, what the experts now suggested was that the body had been put straight into the river and had been taken downstream, but had snagged within a very short space of time and rested on a shoal. While resting on the shoal for at least four hours, badly injured but alive, Janet would have developed hypostatic pneumonia. The tide would then have come in and swept the body upstream to where it was found. So the Crown case at the trial was to ask why, if the appellant was simply taking the newspaper reports as the basis for his confession, did he not stick to the theory initially broadcast? Was that not because he could provide the graphic detail of precisely what happened as he provided in the interviews?

b. The appellant had described in interview how the victim had screamed and he had put his hand over her mouth as two men walked past. The post-mortem examination injuries found to her mouth and cheek were consistent with someone forcibly placing their hand over her mouth. Furthermore, he explained in interview how Janet wouldn’t stop the screaming, so he continued to hit her while she was lying on the floor. He drew a diagram of how she was lying on the floor and how he had kicked her. That diagram showed him kicking Janet to the top of her head. The post-mortem examination revealed that there were injuries to the top of Janet’s head consistent with her being kicked there by someone standing above her head, delivering blows in precisely the manner described by the appellant.

c. The Crown relied on the appellant having, in the interview, described the victim as wearing a necklace and, when being asked to describe it, describing it as “this thin gold chain”. A thin necklace was in fact found at the scene. A gold rope necklace had been described in the press, but as Holland J put it in the summing up, the description in the press “can’t possibly indicate a thin gold chain of the nature that was found on this occasion, and is to be found in the photographs.”

[12]Having regard to the view we have formed on the key issue on this appeal, we do not think there is any purpose in setting out in further detail either the contents of the appellant’s interviews, or the other evidence given at the trial. We repeat what we have already made clear, that there was no evidence other than the confessions to connect the appellant with this murder. There was psychiatric evidence called on behalf of the defence, which suggested that the depressive illness, social phobia, could explain why the appellant made the confessions that he did. It should be stressed that the evidence did not suggest that it was more likely that the appellant would have confessed untruthfully, but if the jury were to take the view that the confession was untrue, it could be explained by the illness from which the appellant suffered. There were then inconsistencies in the version provided by the appellant in his interviews with what must have happened on the evening, and which could be explained on the basis that they had been picked up from the press coverage or the Crimewatch programme. On the other hand the Crown suggested that the appellant’s memory for what had happened on that evening could not, in any event, be perfect, and thus it would not be surprising if features were picked up from the press to supplement such memory as he had. They pointed to the features which they said demonstrated the reliability of the confession.

[13]The fact that the jury at the first trial could not agree showed that this was a finely balanced case. Mr Edis suggested that we ought to take into account the fact that when the CPS first considered whether the appellant should be prosecuted at all in the light of the confessions made, they initially took the decision not to do so. This latter point, we have to say, seems to us to be irrelevant, but there is still force in the submission that this was a finely balanced case. It is in that context that we turn to what is the critical issue on the appeal.

The Parkinson Evidence and the First Trial

[14]At the first trial the defence wished to put in evidence about Parkinson, Janet’s former boyfriend, and about a man called Hayes. Unlike Parkinson, Hayes was previously unknown to Janet, but he was ultimately convicted of stealing Janet’s purse during the night of 15th/16th June before she met her death. His account of the theft was that he took her purse when she was lying on the ground incapable through drink near Preston Station, which is on the way from the town centre to Penwortham New Bridge. Both men had been arrested at different times on suspicion of Janet’s murder. Indeed, at the second trial, the prosecution opening contained the following paragraph:- “Considerable police resources were deployed as you might expect during the investigation into Janet’s murder. Let me briefly mention two men whose names are likely to feature during the trial, being men who the police arrested at different times on suspicion of Janet’s murder. The first was John Parkinson, a former boyfriend of Janet, who was arrested on Tuesday 18th June 1996. The second was Raymond Hayes, who was arrested in November 2000, over a year after the defendant’s confession. Certain agreed facts will be read to you in due course about each of them. Neither was ever charged in relation to Janet’s murder. It is not our intention to set out in any detail what material existed (or did not exist) might have justified their arrest and prosecution. Neither of them is on trial, and we invite you to concentrate on the evidence that you will hear in relation to Andrew Greenwood.”

[15]The admissions that the Crown were prepared to make at the second trial included the admissions that were made at the first trial. We were informed that the admissions at the first trial were in the following terms, although for reasons we shall indicate, and as their incompleteness also indicates, there may well in fact be a later draft of the same:- 1. JOHN PARKINSON a) John Parkinson is ___ years old and has previous convictions: attached. b) John Parkinson was married to a woman (not Janet) who divorced him [date] making allegations of violence and rape against him. c) Janet gave an account of violence at the hands of John Parkinson in a tape recorded interview on [date]. d) At 0141 on 16th June John Parkinson telephoned the home address of Janet from a telephone box on Watery Lane, Preston which is approximately 2/3 miles from the Preston end of Penwortham New Bridge. e) John Parkinson was interviewed under caution while under arrest of [sic] murdering Janet. During that interview he said, among other things, that he had been wearing a checked coloured shirt. A witness who saw him that night said that he was wearing a light coloured top, possibly a jumper. f) Janet’s blood was found on a pair of boxer shorts recovered form Parkinson’s home address at [time place]. g) On June 1996 John Parkinson was disqualified from driving and fined by the Magistrates after information given to the Police by Janet and her friend Victoria Cook had led to his being breathalysed on February 1996. 2. HAYES a) Hayes is ___ years old and has previous convictions: attached b) At some point after the time when Janet left Brendan Connell Hayes stole her purse. He was subsequently convicted of theft of the purse and its contents. c) The chain and locket which belonged to Fiona Watson and which had been in Janet’s purse were recovered on 30th October 2000. d) Hayes was wearing a white long sleeved shirt and black trousers on the night of the murder. e) Hayes walked alone down Fishergate and Fishergate Hill on the night of the murder after finishing work at [time place]. His home addresses are at [places].

[16]The admissions went before the jury. Also before the jury was evidence that following the break-up of Janet’s relationship with Parkinson, he made repeated nuisance phone calls to her at her family home. This may have some relevance to the call he made at 0141 (Admission 2(d) above).

[17]There was also played at the first trial the tape described in Admission 1(c). That was a tape of a conversation between Janet and a female friend which contained considerable detail about Janet’s private life, as well as describing the relationship she had with Parkinson. The conversation had been recorded as part of her friend’s studies into domestic violence issues, and clearly had not been produced in circumstances where Janet would have expected her description to be for public consumption. Leveson J at the first trial was disquieted by the playing of that tape in full. That led to an interchange with counsel on the 18th October 2002, of which we have a transcript. Later in that trial the judge at that trial was faced with a question from the jury relating to when the purse had been stolen by Hayes. By that stage certain hearsay evidence had been given by a police officer about that question, and the judge was concerned not to allow the jury to be misled by any objection from the defence that giving the jury that information would be an infringement of the hearsay rule. Mr Edis for the appellant on that occasion was pressing the judge to be strict about the hearsay rules on the basis that having put in the evidence in the admissions as they were the Crown could meet that evidence by calling Parkinson or Hayes, or any other evidence, to establish or tend to establish that neither of those two individuals was responsible for the killing of Janet.

[18]There was considerable debate at the first trial as to how the judge was to deal with the admissions relating to Hayes and Parkinson. Mr Edis made clear that he was not going to suggest to the jury that they could be satisfied that either Parkinson or Hayes had in fact murdered Janet. His submission was to be “simply to suggest that either of these two men might have been the murderer, and in those circumstances they could not be sure that Andrew Greenwood is the murderer.” Leveson J made it equally clear that he would be directing the jury that they could not “speculate”.

[19]Leveson J asked the Crown to clarify its position and Mr Wright QC, who then prosecuted, said:

“So far as the material that has been elicited by the defence in this case is concerned, we took the view that we would not stand in the way of the defence seeking to elicit that material, notwithstanding that on occasions there arises a question mark over strictly its admissibility.”

The judge was concerned that much of the material might not be admissible and was concerned about the difficulty in which that placed him in giving a direction to the jury. There finally took place this interchange between the judge and Mr Wright:

“Leveson J: Mr Wright you did not comment on my approach to Messrs Hayes and Parkinson. I would be interested for your submissions on that topic. Mr Wright: I propose to address the jury that those details as far as Hayes and Parkinson are concerned are of almost no relevance in this case whatsoever. Leveson J – The fact is that if the jury are not satisfied that the defendant honestly and truthfully made these admissions the case is finished. Mr Wright – That is absolutely correct, and the way I propose to address the jury about it. This is not a trial about Parkinson and Hayes. So far as the details listed about Parkinson and Hayes is concerned of course the defence are entitled to elicit certain details. Leveson J – Yes, I do not think I have ever suggested the contrary, I’m just concerned as to the impact and the question from the jury is very perceptive. There has to be sufficient evidence to justify the police to prosecute. In relation to Hayes it is slightly different from Parkinson because of course Hayes was only arrested after this defendant had admitted that he had admitted. Parkinson was doubtless the subject of a microscopic examination over a very considerable time. Mr Wright – Oh he was. Leveson J – I do not ask you to comment, I do not need an answer, it is a legitimate inference, given the fact that he was arrested within hours or days of the murder. Mr Wright – Yes Leveson J – There it is. Mr Wright - and his clothing taken for a forensic examination made Leveson J – Absolutely understandable that Mr Wright - I am sorry, I did not understand the invitation that Your Lordship extended to me so far as Parkinson and Hayes were concerned, other than to give you my . . . Leveson J – Do you disagree with what I said to Mr Edis? Mr Wright – No I do not disagree about it.”

Mr Wright – Yes Mr Wright - and his clothing taken for a forensic examination made Leveson J – Absolutely understandable that Leveson J – Do you disagree with what I said to Mr Edis? Mr Wright – No I do not disagree about it.”

Leveson J – Do you disagree with what I said to Mr Edis?

[20]Mr Edis then made further points about the ability of the Crown to have called evidence, for example about an alibi for Parkinson, which depended entirely upon his girlfriend, and the judge made clear that he was going to reflect on the way in which he would deal with it in his summing up.

[21]Ultimately, having discussed the matter further with counsel on Monday 21st October, he summed the matter up to the jury so far as Parkinson was concerned in the following way:

“Not surprisingly, a substantial police investigation commenced and in the light of what you know about John Parkinson it is clear that the police looked very carefully at him and went so far as to arrest him on suspicion of murder and interview him under caution. You have seen the admissions read to you by Mr Edis. He was a man with previous convictions, separated from his wife, who in divorce proceedings alleged the use of violence and rape, and in respect of whom Janet has given an account of how he frequently used serious violence upon her. Their relationship had ended months earlier although he had continued to contact her. Janet’s friend, Victoria Cook, said that a man whom she understood to be John Parkinson, although she had not then met him, telephoned at the end of January or beginning of February saying: “You’re going to die, you grassing bitch.”

He continued to make phone calls to Janet’s mother’s home up to and including June 1996. He pestered to such extent that she considered obtaining an injunction to stop them. In that context you can consider that at 1.41am on 16th June he telephoned Janet’s home from a phone box in Watery Lane, Preston. That phone box is 1,000 yards from Penwortham Bridge. Blood-stained underwear both of his and hers was found at his home, although the blood-stained area I think were in the crotch area. You may remember not only the evidence of the violence which Parkinson treated her with while they were together but also that it was alleged that he had stolen things from Janet’s home. Dr Moore found no dirt stains or vegetation on these items and no evidence to indicate that they were work during the incident. [Note: It would seem there must at least have been an admission as to Janet’s knickers being found at Parkinson’s flat and that would demonstrate that we probably have not got the final version of the admissions] There was another silent phone call the following day before Janet’s body was identified. Mr Edis submits that you can conclude that it is possible that he murdered Janet and that if you did come to that conclusion it would follow that you could not be sure that the defendant did. Bear in mind you are not trying John Parkinson. All the material which may be relevant to him is not necessarily before you and your duty is to try the case according to the evidence without speculating whether or why someone else is or is not charged with an offence. On the evidence you have heard you might have no difficulty in concluding from the investigations and the police coverage that you have seen that the police were very keen to identify and prosecute whoever they did consider killed Janet. You may well conclude that John Parkinson treated Janet appallingly badly and was threatening and abusive towards her but you cannot start to speculate as to what considerations influenced the way the police did or did not deal with him. You cannot speculate one way or the other.”

[22]He then dealt with Raymond Hayes in a very similar way, describing the details of what had been admitted, and finally dealing with Mr Edis’ suggestion that “Hayes may have committed this murder”.

The judge said this:

“Approach this submission as you approach everything else in this case, on the basis of evidence. You must not speculate in the absence of evidence or about the absence of evidence. It is, of course, a matter for you but you may think that the better course is to concentrate on what the defendant said and what conclusions you reach about his honesty and accuracy. In that regard Mr Edis went on because having spoken about Parkinson and Hayes and the possibilities he then said this: “This material will drive you to consider three very important features; firstly, whether the admissions themselves ring true. Secondly, whether there is any other explanation for his making of admissions and, thirdly, whether really there is any support for the proposition that he was the murderer”

. Let me say at once I entirely agree that these are the issues which you must consider, irrespective of Parkinson and Hayes, to come to the ultimate question: are we sure that the defendant’s admissions that he killed Janet were honest and accurate? If you are sure then neither John Parkinson nor Raymond Hayes could have killed her. If you are not sure it does not matter who else may have been responsible because if you are not sure you find the defendant not guilty.”

[23]It was Mr Edis’ submission before us on this appeal that whatever anxieties Leveson J may have had about how he was to direct the jury in relation to the admissions made in relation to Parkinson and Hayes, he ultimately summed up the matter to the jury in the correct and appropriate fashion. His complaint is that he was not allowed to put the material on Parkinson before the jury at the second trial and obtain a similar direction from Holland J.

The Trial before Holland J

[24]We have already read the paragraph from the opening of prosecuting counsel, (now Mr Reid QC in place of Mr Wright QC), demonstrating that the Crown’s position was that admissions would be made in relation to Parkinson and Hayes at the retrial. There was, it seems, some anxiety about whether the defence should be entitled to play the tape which had given Leveson J such anxiety at the first trial. That had not been resolved, before Holland J sought submissions in relation to whether any of the admissions or evidence about Parkinson and Hayes should in fact go in. We have a transcript of the submissions which were made on Tuesday 10th June 2002. On that day the judge made clear that he needed “very careful submissions from both sides as to the materiality of so much of this evidence as relates to Mr Parkinson. I fully understand and I have no difficulty with the jury being told that he was arrested, but the police decided not to proceed, with the result that by 1999 there was nobody in the frame, which I should have thought was crucial from both sides point of view.” The judge wanted help as to “the materiality of that which we have heard about Mr Parkinson.” He was of course equally concerned with the evidence relating to Hayes, but it is unnecessary to cover that aspect in great detail, since the judge’s ultimate ruling allowed the evidence in relation to Mr Hayes to go before the jury.

[25]Mr Edis’ submission to Holland J was that he wished on behalf of the appellant to put the admissions and other evidence relating to Parkinson before the jury on the following basis. He wished to make the submission that it was entirely possible, perhaps even likely, that the murder was committed by Parkinson. He explained to Holland J that during the course of the first trial the defence encountered some difficulty in relation to how the evidence to support that suggestion should be presented to the jury, because some of it was hearsay, and he said that there had been a brief discussion in relation to the case of Blastland. It is most unfortunate that no full reference was made to Regina v Blastland

[1986] 1 AC41

for reasons which will become apparent. Mr Reid for the prosecution informed Holland J of the way the matter had been dealt with by Leveson J in his summing up. He further reminded the judge of the way he had opened the case, referring to Parkinson and Hayes. He further made clear that he felt that, having regard to the way the matter had been dealt with at the first trial, the prosecution should deal with it in the same way at this trial, but the judge pressed Mr Reid on how certain aspects of the evidence would be dealt with. For example, it seems that the Crown were prepared to make admissions about Parkinson having in his possession a pair of his boxer shorts with her blood on them and a pair of her knickers with her blood on them in the crotch area; and an admission that no knickers were recovered from the murder scene. The judge (see page 7 line 9 and following) was concerned as to what the jury would make of these admissions, since they would not have all the material available to them, by reference to which the Crown would wish to suggest that no inference should be drawn against Parkinson by reference to such admissions. Mr Reid developed arguments as to why those items of evidence contained in the admissions were capable of a different interpretation and did not point to the guilt of Parkinson. He did so by reference to evidence from Dr Moore, and evidence from Janet’s mother, who would say that the knickers found at Parkinson’s house were not the type that she would expect Janet to wear when she went out at the weekend. Dr. Moore’s evidence was to the effect that the knickers found at Parkinson’s house were clean, “other than the diffuse area of bleeding at the crotch region.” That evidence supported the view that it was unlikely that they would have been worn by Janet on the night of her death since it would have been expected that dirt stains or vegetation would have been found upon them.

[26]Mr Reid informed us on the appeal that he was in fact concerned as to whether the defence might not seek to make a connection with the knickers which had disappeared from the crime scene, and the knickers which had been found in Parkinson’s possession. Mr Reid’s submission was that that would have been an unfair point to take, having regard to the evidence of Dr Moore and the evidence of Janet’s mother, and would have allowed a misleading impression to be given to the jury. We are not quite clear what the difficulty was because Leveson J’s summing up shows that Dr Moore’s evidence was before the jury at the first trial. There was no reason why that evidence and the evidence of Janet’s mother should not be before the jury at the second trial.

[27]This interchange between Holland J and counsel for the Crown and counsel for the appellant took place shortly before the voir dire during which the judge was to listen to submissions as to whether the confessions made by the appellant should be admissible in evidence. The judge wanted further time to consider the matter and, indeed without at that stage calling on Mr Edis to reply fully, adjourned the matter so that he could form some provisional view. The voir dire then took place and it maybe that all sides thought that they had made their position clear, because without further argument the judge included in his ruling on the voir dire his ruling on the Parkinson / Hayes aspect.

The Ruling

[28]He commenced the ruling on this aspect in the following way:

“I then turned to the other problem which arises as follows: Mr Greenwood’s essential case is that by August 1999 a combination of factors resulted in an honest but mistaken belief that he had murdered Janet, hence his confession to the police. Later he came to realize that he was or might be mistaken and that his confession could not be relied upon. I emphasise that he personally does not identify any other individual as being the actual murderer. If innocent he has no idea who has done it. Indeed, it was in the absence of any other known suspect that he approached the police. In the result central to this case is Mr Greenwood, and the extent to which having regard to his conduct and contentions the jury can be sure and satisfied that he was guilty, emphasising that his conduct other than in confessing, raised no suspicion of involvement whether on the night or at any other subsequent time. An obvious corollary to this case the proposition that someone unknown to Mr Greenwood and unidentified by him was the murderer. In advancing this defence his legal advisors have identified two persons as particular suspects, and wish by way of a secondary defence to contend to the jury that they cannot be sure and satisfied that either of these two men did not commit the crime. In the course of the first trial the defence was permitted to raise this secondary defence and it was understandably assumed that the same position would prevail in this retrial. Happily or unhappily, I am not content with the earlier solution for reasons that will become apparent, and on my own initiative I have sought submissions on this point.”

[29]He then reached his conclusions in relation to Hayes. He, having summarised the position so far as Hayes was concerned, concluded as follows:

“First, the available evidence as to Mr Hayes is plainly admissible. It immediately concerns and contributes to the res gestae and once before the jury can be made the subject of whatever comment Mr Edis deems to be appropriate. My present concern is as to the form in which it is admitted.”

[30]The judge then referred to the fact that the evidence could be put forward in the form of admissions, but ruled that he did not regard the admissions as put before the first jury as adequate. He said:

“If the jury is to receive this evidence in this matter so that comment can be fairly made upon it, then the admissions must set out the evidence fully, albeit concisely. As presently drafted they do not set out the evidence implicating Mr Hayes, at least not in any coherent form, and that importantly they do not set out his account, such being adjudged by the prosecution as not open to rebuttal by way of evidence. It is plain that if one is to comment to this jury that Mr Hayes may be the murderer then no jury can reasonably rule upon that comment and take it into their consideration until they have proper material for that purpose, which material must include what Mr Hayes himself has said about the matter. Plainly once they know that they can be invited to take the view that he was lying, but you cannot get to that without having a full picture, and without having a full picture none of this has any potentially probative significance and thus is inadmissible. Of course I recognise that, and it is not for the defence to prove that Mr Hayes is the murderer, the only concern they have, and proper concern, is whether the jury can exclude him as a murderer, but even that exercise can only be properly undertaken by a jury on the basis of admissible evidence, otherwise they embark upon uncontrolled speculation. It would not, I agree, take much to put the admissions in the right shape to accommodate these concerns, but that will have to be done if this is to be the course taken in this particular trial.”

[31]So far as Parkinson was concerned

the judge ruled:

“I then turn to the more difficult problem of John Parkinson, the other prospective suspect. As at the date of death the only person known to be potentially hostile and violent towards the victim was this man, a former boyfriend. Effectively on the basis of motive he was arrested at an early stage of this investigation on suspicion of murder, only to be released without charge. At the first trial at the request of the defence the prosecution made a substantial series of admissions relating to this man, such including production of his criminal record. The defence further played to the jury a tape recording of the victim complaining about this conduct, a tape made whilst making a contribution to some university project on domestic violence. On the basis of this material Mr Edis QC made submissions to the then jury to the effect that they could not be sure and satisfied Parkinson was not the murderer. For his part the then trial judge directed the jury not to speculate. In making his submissions to me Mr Edis raises the following points. He first of all submits that this part of Mr Greenwood’s defence is fundamental. He further submits that I have no discretion to exclude admissible material relied upon by the defence. I respond as follows: First, although I do not regard this as itself a vital objection, I cannot regard the invoking of the suspicion about Mr Parkinson as fundamental to Mr Greenwood’s defence. As I have already pointed out, his defence raises no inferences at all with respect to any particular person. Obviously if there is material to connect the individual to the offence, as is the case with Mr Hayes, then it is proper that it should be put before the jury. But absent any such material then different considerations arise. It is perfectly plain that this problem is not fundamental to his defence, the query is is it a proper part of it as a peripheral issue? Turning then to the problem, I agree that I have no discretion to exclude admissible evidence relied upon by the defence. That begs the question as to whether any evidence is admissible. It is relevant and potentially probative with respect to some material issue? If the material is not admissible then the jury can do no more than speculate to no point. That then begs the question as to whether there is any evidence at all to suggest that Mr Parkinson’s activities on the night in question were relevant to the issue as to who killed Janet and as to that presently there is no evidence to involve him at all with res gestae. The only evidence presently to be put before this jury as to his activities on the night in question is to the effect that he subsequently admitted making a nuisance phone call to the victim’s house from a public telephone box situation two thirds of a mile away from the scene of the murder, doing so at 1.41am. If the Richardson brothers walked for 10 or 15 minutes after being seen on the CCTV at 1.23am before seeing the presumed offender at the locus then this evidence about Parkinson arguably amounts to an alibi and certainly does not begin to implicate him in any continuing activities at the locus from say 1.33 onwards. There is no evidence at all to suggest involvement even as a possibility that the jury cannot exclude. Any submissions based on the material that is therefore potentially to be put before the jury are simply an invitation to speculate on matters that are peripheral to that which is central to the case. My further concern which underlies that view is as follows; even if I were to allow the defence to proceed as at the first trial I would insist on all the material being expanded so as to include all the potential relevant material and not a selection thereof. An excellent example of that which caused immediate concern to me the first time I saw it and continues to cause concern is constituted by admissions 38, 39 and 40 in the proposed list. They read as follows: 38. A pair of knickers, exhibit MDM2, was found in the search at the home of John Parkinson on 19th June 1996. 39. Examination of the said knickers revealed a diffuse area of blood-staining in the crotch 40. A DNA comparison of the said blood matched that of the sample taken from Janet deceased. As presently presented they have the potential to support a submission that at some time between the late afternoon of 15th June when witnesses saw knickers at the scene and the arrival of the police when no knickers were present Mr Parkinson returned to the locus and took the knickers that were then there, subsequently keeping such so as to be recovered by the police. As Mr Reid pointed out in answer to these submissions, there is an abundance of further evidence forensic and from Janet’s mother which appertains to the potential relevance of the knickers which were found at Mr Parkinson’s house and which indeed served to persuade the police that they were not worn at the material time by Janet. So as soon as one contemplates the evidence expansion needed to accommodate all that which would be required to enable the jury to form any proper judgment as to whether this material raised a possibility that Mr Parkinson was involved then the peripheral and essentially irrelevant nature of this issue becomes painfully obvious. I pick out just one example, there are other of these admissions which beg questions rather than answer them. If there was to be a full and proper submission to the jury that they could not be sure Mr Parkinson was not the murderer, then in those circumstances there would have to be proper material in full before this jury so that the jury could make a proper and careful judgment about the matter and could reach a conclusion that would be fair to the merits of this case.”

[32]As regards the above ruling there are certain points we can make straight away. First, the judge was aware that he could not exclude admissible evidence. Furthermore he applied the correct test, that is to say whether the material sought to be put in on behalf of the appellant was “relevant and potentially probative with respect to some material issue”. Second, it may be possible in some circumstances for the judge to rule that evidence which the defence is seeking to put in should not be put in because there is other material which demonstrates that the evidence does not go to proving the point the defence seek to use it for. In other words, the judge may have the ability to control the defence putting in evidence which would mislead the jury. But these circumstances will be rare since the Crown will in most circumstances be able to put in any countervailing evidence placing that which the defence want to put in in its proper context. We would add (and this is why we have quoted the passage relevant to this aspect in paragraph 30 above) that we have found it strange that the judge in relation to Hayes should have dictated the putting in of further evidence by the Crown rather than leaving it to the Crown to decide that which they wanted to put in in order to place the Hayes material in its proper context.

[33]We have found difficult the judge’s assertion that material pointing to Parkinson or Hayes as a possible murderer would be relevant only to some “secondary” defence. It is true that the appellant or those representing him could not prove that either Parkinson or Hayes was the murderer, but in considering whether the appellant was the murderer material that pointed to the possibility of Parkinson or Hayes being the murderer, would seem prima facie to be relevant to the key issue, i.e. whether the appellant was the murderer.

[34]The judge in his ruling concentrates on certain aspects of the evidence, including the knickers found in the possession of Parkinson, and the telephone call made by Parkinson from a phone box close to the scene of the crime. Without for the moment considering his ruling on those pieces of evidence, his ruling ultimately excluded any evidence as to Parkinson’s possible motive. Thus his ruling excluded establishing the fact that Parkinson was a former boyfriend of Janet and was known to be hostile and violent towards her. This became clearer still in the direction that the judge gave to the jury in his summing up, which was as follows:- “Now earlier in the trial, at the beginning of the trial, you did hear from time to time something about another man called Mr Parkinson, a former boyfriend of Janet who at the material time was hostile to her and indeed you were told, no doubt correctly, that at a very early stage in this matter Mr Parkinson was arrested but was never charged and the police have never proceeded against him. You have not heard any more about Mr Parkinson because I have judged and made a ruling in your absence as to whether anything to do with Mr Parkinson was conceivably relevant to this matter. Whereas Mr Hayes is undoubtedly a part of what happened that night, my ruling was there was not any evidence at all to connect Mr Parkinson with the events of that night and in the absence of any evidence it would be total speculation to look further into him or his role, speculation unfounded by any evidence. That was my ruling. It means my direction now is to put Mr Parkinson completely out of your mind. You will notice that there are no admissions . . . there is not material about him. That is quite deliberate. It is because he is irrelevant.”

[35]It seems to us that there was no real basis on which the judge could properly distinguish between the evidence concerning Hayes and that concerning Parkinson. Insofar as he held that Hayes’ theft of Janet’s purse placed him within the res gestae of the events of that night, it is to be noted that Parkinson’s presence nearby when he made the 0141 telephone call could be said to do likewise in his case. Furthermore he, unlike Hayes, was a man known to Janet who might have been considered to have a motive.

[36]Whatever the position be about individual items of evidence about which the judge may be able to rule that they have no probative value in relation to Parkinson, we find it difficult to comprehend that when A is charged with murder he should not be entitled as part of his defence to seek to establish that B had a motive to murder the victim.

[37]As we have indicated it is, we believe, most unfortunate that Regina v Blastland was not more carefully studied. That was a case in which the appellant was charged with buggery and murder. The case for the prosecution was that Blastland had forcibly buggered a twelve year old boy and then strangled him with a scarf. It was Blastland’s case that although he had attempted to bugger the boy another, M, had subsequently killed him. At the trial an attempt was made to call a number of witnesses to give evidence that M had said, before the boy’s body had been discovered, that a young boy had been murdered. The judge had ruled that that evidence was hearsay and inadmissible. The judge had also refused an application on behalf of Blastland to call M and treat him as a hostile witness. The decision was accordingly concerned in the main with the application of the hearsay rule. The decision of course raises difficulties for a defendant where the only means by which a defendant can seek to prove a fact is by reference to some hearsay evidence.

[38]It seems as though the prosecution may often commendably take the view that such a strict application of the hearsay rule could lead to the possibility of injustice. Thus it was in this case that at the first trial the prosecution were prepared to make some admissions, even though the defence might have been in difficulty establishing the facts having regard to the hearsay rule. So it was that Mr Edis, for the appellant before us, was able to say that it is not the hearsay rule which provides any difficulty for his client in this case. If both parties admit facts, there is no difficulty about how such facts might be proved.

[39]What, however, is of some importance is that, as one sees from the speech of Lord Bridge in Blastland, a speech with which all their Lordships agreed, certain evidence relating to M was given and properly given. At page 51 Lord Bridge said this:- “If the appellant’s account was true, then Karl Fletcher,at some time in the evening after his encounter with the appellant, must have been buggered and murdered by another man. A central feature of the presentation of the appellant’s defence at the trial was to invite the jury to draw the inference that that other man was M. It was certainly known to the jury that M had come under suspicion after Karl’s murder, since there was a formal admission by the prosecution in the following terms:

“M was fully investigated by the police after the death of Karl, including medical examination and submission of his clothing for forensic examination”

. The medical examination revealed an injury to M’s penis, the significance of which was canvassed with the medical experts who gave evidence. The forensic examination disclosed nothing to connect M with Karl. In addition there were formal admissions by the prosecution showing M to have been known to engage in the past in homosexual activities with adults but not with children. There were also both formal admissions and evidence relating to M’s movements on the evening of Karl’s murder. All this was, I have no doubt, properly put before the jury as relevant and admissible material which they could be invited to weigh in the scales against the powerful case adduced by the Crown in deciding whether it might have been M, not the appellant, who murdered Karl Fletcher.”

[40]The practice of the Crown being prepared to make admissions in relation to facts which “might” point to a third party having committed the crime, which the defendant denies having committed, is long-standing. Such evidence is relevant and admissible to be weighed in the scales against the evidence adduced by the Crown that it was the defendant they have charged. Of course the Crown cannot be forced to make admissions if they do not accept that the admission points to the possibility of a third party being the perpetrator. Furthermore, if they are prepared to make an admission they can seek other admissions from the defence or put in evidence of their own in order that the admission can go fairly in its context before the jury.

[41]The position seems to us to be as follows:- i) If there is no issue that there has been a murder and the person on trial is saying that he did not do it, then he must by inference be asserting that someone else did. There is no obligation on a defendant to establish that someone else did the murder but, if he has evidence which proves that someone else did the murder, he must be able to adduce it. If he has any evidence that points to another person having a motive to do it he must be entitled to produce evidence of that motive. If he has any other evidence that would point to the possibility that another person might have done the murder he should be entitled to produce it. ii) The fact that material of the above description comes from disclosure by the Crown has placed prosecutors in the past and will continue to do so under some obligation to make admissions, insofar as those admissions are relevant to the issue, whether the defendant committed the crime, of evidence which might tend to show that someone else did it. iii) There was no obligation on the Crown in this case to call Parkinson or Hayes but if the evidence pointing to them was powerful enough the Crown may have to call evidence to rebut the same and in this case, for example, they could (if they thought it necessary) have called the alibi evidence which they would have asserted exculpated Parkinson. iv) On the whole, the question of what admissions the Crown are prepared to make, or what evidence the Crown should call, should be left to the prosecution. Clearly the judge is entitled to express a view on whether evidence is admissible or relevant, but the evidence which the Crown are prepared to put forward should on the whole be left to them. It does not seem to us that the Crown were saying that the evidence of the telephone call made at 1.41 on the 16th June by Parkinson from a telephone box two-thirds of a mile away from the Penwortham New Bridge was irrelevant or inadmissible. The judge’s ruling “If the Richardson brothers’ walk for ten to fifteen minutes after being seen on the CCTV at 1.23 before seeing the presumed offender at the locus, then this evidence about Parkinson arguably amounts to an alibi, and certainly does not begin to implicate him . . . .” seems to us to be taking a matter away from the jury, which the jury should have been entitled to consider. The fact that something may arguably amount to an alibi should not prevent the appellant being entitled to put before the jury that Parkinson was, in fact, two-thirds of a mile away from the murder scene on the morning of the murder, and was a person who had previously had a relationship with the victim and had a motive in the sense of having been violent towards the victim in the past. v) As regards the knickers, it may be that the admissions in relation to the same, without further evidence which discounted their relevance, would have given the jury a misleading impression. That, as we would see it, was very much a matter for the Crown. It seems to have been dealt with at the first trial by reference to the evidence of Dr Moore. But one can see just the possibility that if the defence were not prepared to act in a way which avoided the jury being given a misleading impression, the circumstances might have arisen where the judge would have to make some ruling. vi) But the important point is that it cannot have been right to take away from the jury’s considerations all aspects of Parkinson, including that he had been the victim’s boyfriend and had acted violently to her in the past, and indeed was in the vicinity on the evening of her murder.

[42]The above being our view, it seems to us impossible to hold that this conviction was safe. As we have already indicated, the Crown had strong points to make on the interviews, but those were strong points that they made at the first trial and which produced a situation in which the jury did not agree. It would in our view not be right now to seek to place this court in the position of a jury examining the evidence in minute detail, when what was an important aspect of the argument which the appellant wished to place before the jury was removed from him. We accordingly must allow this appeal and quash the conviction.